LeBrun: Legal avenue appears to open for Hoosick Falls residents

Fred LeBrun

Updated
5:32 pm EDT, Sunday, June 19, 2016

In the legislative session's closing days, beleaguered Hoosick Falls residents got a measure of relief with the passage of a bill extending the statute of limitations for personal injury lawsuits related to pollution from Superfund sites.

While the notorious PFOA contamination to air and drinking water caused by plastics manufacturing over half a century in Hoosick Falls was the genesis of the bill first offered in February by Democratic Assemblyman John McDonald, a pharmacist, and Republican Sen. Kathy Marchione, who represents the district, its effect is statewide and far reaching. And, we can hope, only a beginning for opening new legal avenues of relief for those victimized as the residents of Hoosick Falls have been.

Under the bill, a three-year clock on personal injury lawsuits would begin with the designation of the pollution source as a Superfund site, or the discovery of the injury, whichever is latest. The existing statute is an industry favorite for good reason. The clock begins when an injury is discovered, or "reasonably should have been discovered," whichever is earliest.

Currently, that leaves many Hoosick Falls residents who are only now discovering they might have a potentially grave and expensive health problem, or might not know for years, unable to sue the polluter or whoever has inherited the liabilities. The change is a no-brainer of the first order in terms of fairness and justice, and yet it proved a heavy lift to the very end, which graphically demonstrates who too often butters the bread of our state leaders. It's not us, unless we make a big fuss that can't be ignored, which happened in this instance.

Gov. Andrew Cuomo can veto the bill if he wishes, at his peril. This is an issue of trust, and not just for Hoosick Falls. The jury is still out on whether Hoosick Falls residents have any faith in state government and this administration, no matter what assurances they've received, and for good reason.

The story line for how the McDonald-Marchione bill finally was unanimously approved without a word of comment or debate by the Senate, following earlier approval by the Assembly, is rich material, wiggles like a snake, and features good guys and bad guys and a flip-flop-flip by one of the sponsors.

McDonald has been an unwavering advocate of this bill from the beginning. Marchione, yes and no. She was a big supporter at first, but when the call for public hearings on the state's debacle over Hoosick Falls became loud, she fell in step with Senate Majority Leader John Flanagan, who dismissed the need for hearings. She still holds that position. Oddly enough, it's the same stance taken by Cuomo, whose health department continues to be justifiably under heavy criticism for having misled the public about drinking the water.

Eyebrows went up in Hoosick Falls over Marchione backing away from hearings, although she continued to support her bill. Then last Tuesday, just before that bill was about to move, she unexplainably amended it with changes that made it even worse than the existing statute for actual human beings, as opposed to polluting corporations.

A host of advocates for the original bill were flabbergasted, the citizens of Hoosick Falls outraged. The latter took to social media and made their voices heard loud and strong and in the right places. According to Scott Waldman of Politico, Marchione was widely tweeted as Benedict Marchione, as in Benedict Arnold.

The next day, Republican Assemblyman Steve McLaughlin, a resilient critic of the stonewall on public hearings on the Hoosick Falls debacle, held a news conference. A strong contingent from Hoosick Falls spoke, and then decided to lobby the governor's office and maybe find a few answers. They were ushered into the office of Jim Malatras, director of state operations. The governor was busy with legislative leaders. Malatras listened and tried to give assurances.

Karen DeWitt of National Public Radio and New York Now accompanied the Hoosick Falls crowd in the meeting with Malatras. She was ordered to leave by the governor's people, but refused and was eventually made the pool reporter for an event that would otherwise have had no professional witness. Her presence proved important.

All this led Marchione a few hours later to drop her amended bill and return to the original, which passed that night. She told Waldman it was pressure from the Business Council that led to those awful last minute amendments, which she said proved to be a poor attempt to make a better bill. The offending language may have come from the Business Council — St. Gobain is one of their members — but smart money says the real pressure to kill the original bill came from the governor's office and her own leadership, who backed off when they realized they were playing a bad hand. Marchione, who probably had not much to say about it either way, must have been deeply relieved. It's no fun to see your credibility and political career tweeting away.

High marks most of all to the residents of Hoosick Falls, who are most definitely rising to the occasion. As Liz Moran of Environmental Advocates of New York put it, "the residents of Hoosick Falls had a major victory today. At every turn, they have had to fight and scrape over what we all take for granted: healthy water that doesn't make us sick, and a government that has our backs."

Someday, with a little luck and a lot of persistent advocacy. But between now and then, it's going to a long haul, on both counts.